Yes on 57

I’ve been avoiding Proposition 57 because, without having read the text of the law yet, I assumed it would require cross-referencing with the penal code, and I wanted to set time aside to do that.

I was wrong; it does not require such cross-referencing, because it’s actually very, very simple.

Prop. 57 does three things:

[a] anyone in prison for a nonviolent felony is eligible for parole *consideration* after completing the full term for their primary offense.

[b] The Dept. of Corrections and Rehabilitation (“Corrections”) can award good behavior credits.

[c] When kids between the ages of 14-18 commit crimes, instead of being automatically transferred to adult court if the prosecutor follows the procedure needed to do it, will only be transferred to adult court *if a juvenile court agrees to the transfer* after considering the behavioral patterns and social history of the minor.

Prop. 57 is on the ballot at the behest of our Governor, who put it there as part of an attempt to change criminal procedure in the s tate, partly for the purposes of finding a way to comply with a federal court order to reduce prison overcrowding. There’s a good argument that the proposition violates the California Constitution, which requires that initiative propositions be confined to a single subject; the parole-related provisions were tacked on to the juvenile justice change after the initiative was initially submitted, and they don’t really address the same issue. Still, the California Supreme Court said it didn’t violate the single subject rule, and so it’s on the ballot. ūüôā

In order to understand the effects of these changes, it’s helpful to look at what happens now. ūüôā

===How do criminal sentences and parole currently work?===

Currently, California has two different sentencing schems: “indeterminate sentencing”, in which convicts are sentenced to a variable-length term with a defined minimum and no defined maximum (eg, “25 years to life”), and “determinate sentencing”, in which people are convicted to a fixed term. Prior to the late 1970s, California *only* had indeterminate sentencing, but the stte adopted a determinate sentencing scheme for most offenses during the late 1970s.

For people sentenced to indeterminate sentences, after the *minimum* term is served, the parole board conducts a hearing and considers whether to let the guy out or not. Some people get out; some people don’t get out. The people who don’t get out have another hearing in a couple of years (the length depends on various things). Some people (notoriously Charles Manson and his friends) go to hearing after hearing after hearing and never get out.

For people sentenced to determinate sentences, there is no parole hearing; they automatically get out when their term ends. Furthermore, many non-violent felons serving determinate sentences are currently released at *half* of their prison sentence due to the implementation of a federal court order requiring California to reduce criminal overcrowding.

Some people are sentenced to multiple consecutive sentences because they commit multiple crimes. Consider, for example, someone who was arrested for possessing heroin with intent to sell, but who also had in his possession an amount of cocaine sufficient for personal use. If convicted of *both* offenses, he would be sentenced to two consecutive sentences: one for the heroin, one for the cocaine. As both would be determinate sentences, he would not be eligible for release until he’d served all of both.

=== What does Prop. 57 do to parole? ===

Under the terms of Prop. 57, nonviolent criminals who are sentenced to multiple consecutive sentences because they have been convicted of multiple crimes will be eligible for parole as soon as they have served the time required for their *primary* offense. So, in the example above, the guy would get out when he w as done serving t he time for possessing heroin with i ntent to sell.

=== What are the arguments for and against this part of the proposition? ====

The primary argument *for* this is: the state is under federal court order to reduce prison overcrowding. We’re *not* going to do that by building new prisons (because there’s no money and insufficient political support), and this is one of the lowest-impact ways we can come up with to reduce prison populations: let nonviolent criminals who are in for a long time out earlier.

The primary arguments *against* this are: this will let dangerous criminals loose on the streets of California, and this *in effect* means the criminal isn’t being punished *at all* for his lesser crimes – by punishing him only for the primary crime, the state is allowing him to get away with the other crimes.

The official argument against claims the proposition will reduce sentences for people convicted of raping an unconscious victim, human sex trafficing, lewd acts against a fourteen year old, and other terrible crimes. This is true, but *only* because *existing law* defines these crimes as nonviolent – the initiative doesn’t define nonviolent, it uses the existing definition under state law. That definition can be changed by the legislature at any time.

=== How do early release credits work today? ===

Under state law, inmate sentences can be reduced by a certain amount (it differs among category of crime) for prison labor, participation in education programs, and good behavior. Some prisoners are not eligible due to the nature of their crime.

=== What does Prop. 57 change? ===

Prop. 57 changes the Constitution to allow good behavior credits (which are currently authorized by statute). This will have the effect of increasing the number of people who are able to get them, as it allows Corrections to determine eligibility by regulation (instead of eligibility being spelled out in statute).

=== What are the arguments for and against this part of the proposition? ===

There are two arguments for: (a) we need to reduce prison overcrowding, and (b) rewarding inmates for good behavior, participating in education and training programs, and working *encourages them to do these things*, which both improves management of the prisons AND increases their rehabilitative effect.

The arguments against are: (a) it will let dangerous criminals out on the street, and (b) by extending eligibility to people convicted of various horrible crimes, it reduces the punishment for those crimes, and that’s unfair to their victims and dangerous to the public.

=== How do juvenile justice transfers currently work? ===

Under current law, children aged between 14 and 18, who are accused of cimmitting crimes after they turned 14, are automatically transferred to adult court if they are accused of committing murder or sex offenses with special circumstances, are automatically transferred if a prosecutor alleges that they have a significant criminal history or if they are accused of particular crimes, or they can be transferred via a hearing in front of a juvenile court judge. In 2015, according to the LAO’s analysis, less than 100 juveniles were transferred to adult court via a judicial hearing, and between 500 and 600 juveniles were sent to adult court total.

=== What does Prop. 57 do? ===

Prop. 57 eliminates *all* automatic transfers to adult court and only allows transfers after a hearing in front of a juvenile court judge.

=== What are the arguments for and against this part of the proposition? ===

The arguments for is that allowing a prosecutor to make the decision on their own doesn’t provide sufficient procedural protection to determine whether a juvenile is competent to be tried as an adult.

The argument *against* is that this will allow vicious children to continue to be prosecuted by the juvenile system, which will coddle them and prevent them from learning the lessons needed to keep them from becoming vicious adult criminals.


For me, the case for the third part is compelling: allowing *prosecutors*, on their own without judicial oversight, to decide that children should be tried as adults is a terrible process. It vests the power to decide someone’s *competence* in the hands of a person whose job it is to *prove their guilt*; it creates an inherent conflict of interest and undermines the integrity of the process.

I’m neutral on the first and second part. I’m not screaming for this reform the way I am screaming for other reforms, *and* I’m not opposed to itt; we really do need to reduce our prison population, and reducing sentences for nonviolent offenders, while providing an incentive for both good behavior and participation in rehabilitative programs seems like it’s a great way to do that.

I’m voting yes.

(probably) No on 61

I’ve been ignoring Prop. 61 because i’m uncertain what to do about it.

—What does Prop. 61 do?—-

“Notwithstanding any other provision of law, and insofar as may be permissible under federal law, neither the State of California, nor any state administrative agency … shall enter into any agreement with the manufacturer of any drug for the purchase of a prescribed drug unless the net cost of the drug, inclusive of cash discounts, free goods, vlume discounts, rebates, or any other discounts or credits, as determined by the State Department of Health Care Services, is the same as or less than the lowest price paid for the same drug by the United States Department of Veterans Affairs.”

In other words: the state and its agencies cannot contract with drug manufacturers to purchase drugs at a price higher than that paid by the VA.

There are a couple of obvious problems with this as stated: how do we know how much is paid by the VA, and what do we do if we can’t tell? How do we know how much we’re paying, given the complexity of discounts, free goods, rebates, etc? What’s the point in prohibiting purchases *from the manufacturer* but not prohibiting purchases from some intermediary retailer?

That last point, in particular, is telling — this only effects purchases from the manufacturer, and there are ways to get around that using shell intermediaries, so it’s not clear that it will even have any effect.

But put that aside for a moment, because it doesn’t really address my key conflict on the issue.

—Why am I conflicted?—

This is a high-stakes negotiating tactic.

One of the key things in negotiation is that when you come to a table with a price you’d prefer, you claim that you can’t budge from it. The *credibility* of that claim effects your negotiating partner’s behavior – if he thinks your claim isn’t credible and that you’d prefer a higher price to no deal, he’ll push for a higher price. If, on the other hand, he believes that you would prefer no deal to a higher price, then he has to ask if *he* would prefer no deal to this price.

So if you can increase the credibility of your negotiating position, you increase the likelihood that you’ll get what you’re asking for.

In this case, the proponents of the initiative are trying to create a situation where the state *must* take ‘no deal’ over a deal with a higher price. This is the ultimate in credibility: we are legally prohibited from taking a higher price.

That’s great! It greatly increases the likelihood of California getting the price it wants *if the people we are negotiating with would prefer that price to no deal*.

Would they?

Who knows.

That’s why this is a gamble. It’s high reward if it pays off, but it’s high risk if it fails – because if it fails then California may simply not be able to buy certain drugs.

I’m generally pretty risk averse when it comes to this sort of thing, so the high risk worries me way more than the high reward does, which causes me to lean against.

But at the same time … if *anyone* can get away with this, California can.

So maybe it’s worthwhile?

At the end of the day I’ll probably vote against, because of a combination of my risk aversion and a sense that this *really* is not the sort of thing the voters should be deciding. I get that it’s a ballot measure because the legislature is to some degree bought by the drug industry via campaign contributions and so the legislature could never pass something like this on its own; and yet at the same time, a vote of the people doesn’t strike me as being the best way to decide whether or not to proceed with a high stakes negotiating gamble.

No on 63

I’ve been ignoring Prop. 63 because somewhere along the line I became something of an absolutist. If the second amendment guarantees an individual right to bear arms, then I should view rules governing arms with the same skepticism that I’d view rules governing speech. If I think that a rule prohibiting me from posting on the internet until I’ve passed a background check is an infringement on my right to freedom of the press, then I should also think that a rule prohibiting me from buying a gun until I’ve passed a background check is an infringement on my right to bear arms. The rules for what is or isn’t a *reasonable* infringement are different – because retrictions on weapons in the name of public safety raise different ‘reasonableness’ concerns than restrictions on speech in the name of public safety, and are easier to justify as reasonable – but in the context of a federal constitutional rule *prohibiting infringement of the right*, if I think it’s infringed, then reasonableness doesn’t enter into the picture.

So Prop. 63 has the *appearance* of being a law I don’t even need to think about before rejecting; if it infringes the right to bear arms, then it’s unconstitutional, and I’m not going to vote for it, *even if it’s a policy that I would think was good absent the constitutional prohibition*.

Still, nothing is absolute, and the path of wisdom is to read and consider before rejecting.

—What does Prop. 63 do?—

(a) requires that people who lose their firearms, or whose firearms are stolen, report it to local law enforcement within five days of “the time he or she knew or reasonably should have known that the firearm had been stolen or lost”.

Note: “Reasonably should have known” means that someone can be punished under this rule *even if they didn’t know that the gun had been lost or stolen*, if a jury decides that a reaosnable person would have known. I think this rule is good policy (making it easier to track lost or stolen firearms has strong public safety benefits) and is constitutional (i don’t see how it infringes your right to bear arms, to require you to report when your arms have gone missing), and i’m not sure i’m comfortable with the reasonably-should-have-known language. It’s pretty standard, to be sure, and yet, it runs the risk of punishing people for conduct outside of their control.

(b) it makes it illegal (an infraction or misdemeanor) to possess a “large-capacit magazine”. This enhances a provision adopted last year (which made it illegal to import, manufacture, or sell, such, but allowed people who already had them to keep them).

“large-capacity magazine” is defined as “any ammunition feeding device with the capacity to accept more than 10 rounds”. This ban is probably good policy, in that it makes it more difficult for people to use guns to commit mass attacks, AND it strikes me as being unconstitutional.

(c) it requires that any ammunition sale (eg, between two random people) be processed through a licensed dealer.

what? i can’t sell ammunition to my best friend without the intervention of a licensed dealer? that seems *massively* intrusive.

(d) it prohibits, as of July 1, 2019, a licensed ammunition vendor from selling or transferring ammunition to anyone who isn’t on the “centralized list of authorized ammunition purchasers”.

Under this plan, persons 18 years or older can apply for an authorization (which lasts four years), which shall be revoked for a variety of reasons. Applicants can be charged a $50 fee. Approval is subject to a background check.

So … to obtain ammunition you’d have to apply in advance and pay the state $50. The equivalent for the first amendment is horrifying.

(e) it requires that anyone who is convicted of certain offenses must relinquish their firearms by transferring either to local law enforcement or a third party who is allowed to possess firearms.

I’m kinda shocked that’s not already the law.

— Let’s make this more complicated —

California adopted a bunch of new firearm regulation rules during this last legislative session, including a rule requiring a license to sell ammunition, and a rule required licensed sellers to check to see if you are on a “cannot buy” list before selling to you. That latter rule seems much better than the rule in the proposition, in that it’s a “sell unless forbidden” rule rather than a “sell only if allowed” rule. These new rules were adopted *after* the proposition qualified for the ballot.

The complicating factor is that the legislature passed rules which *change the effect of the proposition* if the proposition passes. Those changes override the “only if allowed” rule to make it an “unless disallowed” rule, and allows the state to charge a $1 fee per transaction for checking to see if your name is on the list.


I don’t understand the need for this legislation, and I think it’s unconstitutional — the ammunition licensing provisions, and the inability to sell to your friends without going through a licensed dealer, are a gross intrusion on the right to bear arms. I’m not convinced they’re *reasonable*, and I’m fairly certain they’re not constitutional.

I will vote against.

No on 66

Proposition 66 makes a set of changes to the *government code* and to the *penal code*. Broadly speaking, these changes are intended to streamline the appeals process for someone who has been convicted of a crime and sentenced to death.

Proposition 66 inherently conflicts with another measure on the ballot, Proposition 62, which repeals the death penalty. If both propositions pass, the proposition which gets the larger number of Yes votes will take effect. Accordingly, if you are voting for Proposition 62, you should *under no circumstances* vote for Proposition 66.

—The changes Proposition 66 would make—

* Proposition 66 would explicitly state that *victims of a crime* have a right “to have judgments of death carried out within a reasonable time”, thereby giving victims of crime a recognizable, legal interest in the execution of the person convicted for the crime.

* It would require that all executions be carried out within five years of conviction, and require the state court system to adjust its procedures to make sure this happens

* It would allow the state, the sentenced criminal, or the victims of the crime to sue to enforce the time limit if, for some reason, the appeals process is taking too long. (It’s not clear as a practical matter what the remedy would be when a victim sues to force appeals to move faster).

* It would require that all executions be carried out within 30-60 days of the conclusion of the appeals process

* It would require the Supreme Court to appoint random attorneys to handle appeals for indigent death penalty convicts

* It would change the rules so that any petition for habeas corpus (essentially, an attack on conviction or sentence) be heard *by the court which heard the original case*

* It would require that any habeas petition be brought within one year, unless a court finds that a preponderance of the evidence (whether or not admissible at trial) shows either actual innocence or ineligibility for the death penalty

* It would prohibit a stay of execution for consideration of a habeas petition brought outside the one year, unless a court finds that there is a “substantial claim” of actual innocence o r ineligibility.

* It would require trial courts to resolve habeas petitions within two years of filing

* It would limit issues on appeal to issues raised at trial, except for ineffective assistance of trial claims

* It abolishes special housing for death row inmates and distrubutes them across the general population

* It requires death row inmates to perform prison labor, and directs that 70% of their wages be spent on restitution fines or orders

* It exempts rules and procedures adopted pursuant to Prop. 66 from the Administrative Procedures Act

* It says that *only* the original court can hear claims that the method of execution is unconstitutional

* If a federal court finds a method of execution unconstitutional, it requires that Corrections adopt a new, constitutional method, within 90 days.

* It prohibits any medical licensing board from revoking the license of a doctor who assists the department in carrying out executions

* It makes some hyper-technical changes to the operational rules for the state’s habeas resource center (which provides assistance to indigent criminals).

— There are a bunch of changes there, and mentally, I broadly classify them as follows:

* Some of the changes are directed at streamlining the process and making it run faster (carrying out executions within five years, carrying out executions within 30-60 days of the end of appeals, requiring habeas petitions to be brought within a year and resolved within two years, and requiring speedy adoption of new processes if an execution protocol is deemed unconstitutional).

* Some of the changes are directed at ensuring that only the original trial court is hearing new cases, which presumably both makes things faster (the original trial has the context and already understands the situation and thus doesn’t have to be brought up to speed) and reduces variability in outcomes which might arise as a result of things being heard in different courts

* Some of the changes are directed at making life harder for the death-sentenced, by abolishing death row and requiring the convicts to work

* Some of the changes are directed at increasing victim involvement in the process

* One of the changes cannot be understood without understanding a wide swath of California legal procedure and is included in the measure for reasons I don’t understand.

— Streamlining the process nad making it run faster —

This is the main goal of Proposition 66, and it’s the thing which gets the most discussion in the campaign. *If we are going to streamline the process*, these provisions generally make sense, although one of them is actually impossible to carry out and has a very “Knut commanding the waves to stop” feel about it. (There’s simply no way that a federal court, having ruled the existing execution protocol invalid, will confirm that a new protocol is valid within the ninety day limit set by this proposition – the federal courts don’t work that fast, and the proposition can’t command a federal court to act within a specified period of time. Accordingly, it’s impossible for Corrections to comply with this requirement).

Whether or not you think we should streamline the death penalty really depends on beliefs you bring to the conversation that are not grounded in this proposition per se. If you’re opposed to the death penalty, of course, you should be opposed to streamlining. If you think that criminals have too many rights and are too protected by the state, streamlining makes sense.

For me, on this question, the issue is: can streamlining be carried out in a way that does not decrease the likelihood thatactual innocence will be uncovered? Executing an innocent man, for whatever reason, is a travesty and a stain on the honor of the state; we should go to great lengths to avoid it.

It’s hard to tell. The measure does allow actual claims of innocence to be brought at any time – but by requiring the execution within a short period after the end of appeals and making it harder to get a stay of execution for such claims, it reduces the amount of time for evidence of innocence to be found (which is a real issue in cases that are based on, for example, lying informants). That said, it’s *already* the case that death-sentenced convicts have the best chance to get their claims of innocence heard and analyzed, because there’s a vast army of volunteers interested in helping, and that’s unlikely to change.

The other issue is whether the time limits are realistic. Which is to say: one to two years to hear a case may simply *not be enough time* given the speed at which our system normally operates, and commanding it to operate faster without ensuring that more resources are made available does not seem likely to be successful.

— Requiring only the original trial court to hear new cases —

From what I can tell, these provisions exist under the theory that having the original trial court hear any new cases will result in those cases taking less time because the original trial court is already familiar with the evidence.

But that’s a double-edged sword, because if the claim is *actual innocence*, then the original trial court is way less likely to approach the new evidence with an open mind; the court’s familiarity will incline it to prejudge the new evidence – not through any venality of the court, but through standard human psychology.

— Making life harder on the death-sentenced —

Proposition 66 would abolish death row and send the death-sentenced to the general population. The idea behind this, on some level, is that death row is too *easy* on the death-sentenced.

There may be something to that.

And yet … putting the already death-sentenced in the general population is a *terrible idea*. It’s a terrible idea *for the other inmates* because the death-sentenced have no incentive to behave reasonably in the general population. They’re *already sentenced to die*; what more can the state do to them? What leverage do the wardens have, either carrots or sticks, to motivate good behavior?

It’s a bad idea; it’s guaranteed to lead to problems with prison security.

— Increasing victim involvement in the process —

I don’t understand what the practical effect of these changes is. I mean, say an appeal runs past five years, and the victim’s family sues; what’s the remedy? An order from one court to another court telling it to go faster? How is that enforced?

One answer to this is that the court hearing an appeal could be ordered *to dismiss the appeal* in furtherance of the rights of the victim. But it’s hard to imagine that happening, because that would clearly violate the appellant’s due process rights *under the federal constitution*.

So this set of provisions strike me as being rhetorical sugar whose practical effect is unclear but likely close to nonexistent.

— Stepping outside the Administrative Procedures Act —

The Administrative Procedures Act is a piece of legislation which enforces rules for how state agencies are supposed to operate *procedurally*. It includes rules that have to be followedd when new procedures or regulations are adopted; I do not know the specifics of California procedure law, so I don’t know what the rules are.

Proposition 66 exempts from the APA any regulation or procedure adopted pursuant to Proposition 66.

It’s not clear to me *why*. I assume there are elements of the APA which are perceived as slowing down the process, and so the authors of the initiative want to prevent those parts of the APA from operating, and it’s probably easier to just prvent the entire thing frmo operating than it is to try to piece out which parts to keep and which parts not to.

This strikes me as being a bad idea, both because there’s no good way for anyone voting on it to know what it does *and* because it sets a precedent which will later be used to exempt other things from the APA, too.

— A summary —

There are some things in this measure which, in my mind, should give a strong supporter of the death penalty pause. It moves death-sentenced convicts into the general prison population. It involves victims in the process in a way which is unlikely to have any actual effect but which is going to harm them by increasing their involvement and then disappoiinting them in the outcome. It exempts large parts of the death penalty process from the Administrative Procedures Act, setting a bad precedent.

That *should* be enough, in my opinion, for death penalty supporters to send this measure back and ask for a new one.

I will be voting ‘No’.

A question about Caetano v. Massachusetts

Yesterday, the Supreme Court issued a two-page unsigned opinion resolving a dispute between the Commonwealth of Massachussets and Jaime Caetano, who had been prosecuted for possession of a stun gun. The Court ruled that the law prohibiting stun gun possession violated the second  amendment.

In the brief discussion, the Supreme Court dismissed an argument made by Massachusetts. Massachusetts had argued that stun guns could be prohibited under an old common-law rule allowing prohibition of items which are “dangerous per se at common law and unusual”.

That’s a fine, and reasonable rule; there’s a difference between weapons (which are protected by the second amendment) and random dangerous things (such as, say, containers of ricin, or suitcase nukes).

But¬†where exactly does that line lie? The Supreme Court didn’t get into it, because Massachusetts had conflated “unusual” with “in common use at the time of the Second Amendment’s enactment”, a standard which result in a second amendment that functioned as the first amendment would function if it were held not to apply to the internet because the authors of the first amendment couldn’t have imagined computers.

Yet it’s an interesting and important question. What’s the line between an unprotected dangerous per se object and a protected weapon?

Nebraska v Colorado

My news feed was interrupted yesterday, a bit, by talk of an unusual thing: two Supreme Court Justices dissented from the denial of certiorari by the Supreme Court. This is a rare thing for various reasons, and rare as it is for me to agree with the Justices who dissented, I think in this case they may have it right.

The case in question was an original jurisdiction lawsuit between Nebraska and Oklahoma (on one side) and Colorado on the other side. Under Article III of the US Constitution, which says “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction”, such cases go straight to the Supreme Court, which acts as a¬†trial court, rather than an¬†appellate court, in such cases. The distinction here is important: when a trial court is deciding whether or not to take a case, it should in general base that decision not on an analysis of the merits of the case, but on the answer to the questions: (1)¬†if what the plaintiff alleges is true, would there be an injury sufficient to seek redress, and (2) is there enough evidence that it’s¬†plausible that it’s true and a trier of fact should be enlisted to determine whether or not it is?

Oklahoma and Nebraska allege that (a) Colorado has established a legal regulatory scheme which is contrary to federal law, and that federal law prohibits Colorado’s regulatory scheme, and (b) that regulatory scheme has resulted in harm to Nebraska and Oklahoma in the form of increased drug trafficking and, as a result, increased expenses in enforcement activity and incarceration.

The thing is, for a trial court considering whether or not to take the case, allegation (b) above should be treated as true, and the question should be: if the allegation were true, is there an actionable case?

There’s a colorable argument that even if the argument were true, there would be no actionable case. While I think it’s fairly clear that Colorado’s¬†regulatory scheme conflicts with the Controlled Substances Act, it’s also not clear to me that the Controlled Substances Act gives anyone other than the US Dept. of Justice standing to sue to resolve such conflicts. And it’s also not clear to me that the nature of the harm Oklahoma and Nebraska allege is a federal question.

But surely those are questions that are entitled to a hearing. Stripped of the context of the war on drugs, these are important questions of structural federalism Рand only the Supreme Court can really resolve them.

So I think the dissent had it right: the court should have taken this case.

[Note that while I think there’s an interesting question of law here, and while I think it’s entirely possible that Colorado’s regulatory scheme is actually prohibited by federal law and pre-empted in a way that renders it unconstitutional, I think that’s a question regarding the¬†regulatory scheme.

Which is to say: it’s perfectly clear that the federal government cannot compel Colorado to make ¬†marijuana illegal under Colorado law, or to enforce the federal law; what is at issue is whether or not Colorado may construct a regulatory scheme which is inconsistent with the federal regulatory scheme.

To take it out of the realm of drugs for a moment, a structurally equivalent case would be if the federal government had a policy prohibiting the trade in ivory in order to protect the remnant elephant population, but Colorado law allowed a heavily regulated, licensed trade in ivory; would that regulatory system be allowed to stand?

The irony in this, of course, is that Oklahoma and ¬†Nebraska’s position is massively self-defeating as a matter of policy. If they’re¬†right that the CSA precludes Colorado’s regulatory scheme, the net result would be that marijuana ¬†would remain not-illegal under Colorado law, but that Colorado would be unable to regulate its trade; that seems like it would be¬†more likely to produce problems for the neighboring states.]


The California Legislature did what, now?

The California Legislature  has passed a bill, and the Governor is expected to sign it, which increases the age at which one may purchase or consume tobacco products to 21.

I’m not, generally, in favor of smoking tobacco. My grandmother died of lung cancer. My mother died of lung cancer. A close aunt is currently struggling with lung cancer. My husband’s uncle recently died because of lung cancer. Smoking-induced lung cancer is a plague upon humanity, and ¬†people who smoke tobacco frequently find themselves unable to give up the habit once they’ve started.

And yet.

What does adulthood mean, if it doesn’t mean that one is free to make one’s own choices? The California Legislature appears to believe that an eighteen year old is old enough to decide to donate her kidney (and go the rest of the life without one), but not old enough to decide to take up smoking (and assume the attendant risk). The California Legislature appears to believe that an eighteen year old is old enough to vote for or against a ballot measure to legalize marijuana, but not old enough to decide to smoke tobacco. The California Legislature appears to believe that an eighteen year old is old enough to enter into contracts assuming huge amounts of debt, but not old enough to decide to smoke tobacco.

This makes no sense at all.

If tobacco smoking is really so singular that the decision can’t be made by someone who can undertake normal contractual activity, then what’s the basis for believing that a 21-year-old can make the decision, or a 30-year old, or anyone at all? ¬†Contrariwise, if it isn’t so singular, why should the law treat it as though it is?

The legislature was wrong to pass this. The governor will be wrong to sign it. And the people should repeal it by referendum.

I won’t lead the charge for that; while this law¬†offends me, it’s just another one of those things, in the end. But I’ll support the charge if someone leads it.